If you're not getting the right answers, you're probably not asking the right questions ∼ Edward Hodnett

The Special Relationship Between Experts and Their Retaining Counsel

Selecting any expert witness requires an attorney to understand the issues at bar, as well as the opinions of experts that will be required to provide clarity to the finder(s) of fact. Some areas of practice, such as land use and real property litigation, often create added dimensions of complexity in evaluating and planning for necessary testimony. Obviously, litigation varies widely from case to case, and the attorney's challenge in putting together expert testimony to clearly define the facts and relevant conclusions of the case cover a tremendous range of issues. Considerations that go into properly evaluating the need for expert testimony, and subsequently selecting and managing the experts, can be one of the most critical aspects of case and trial preparation.

The nuanced assessment of litigation issues provided by experts is something that is often given short shrift in the early stages of case evaluation or litigation preparation. There may be straightforward legal issues identified in the cases, but the vast number of unique issues that play into virtually every case requiring expert testimony calls for a somewhat different and expanded relationship between the attorney and the experts.

If done right, management of complex subjects general requires a large team of consultants. In real estate, land use, and development, for example, the management team includes legal, marketing, finance, environmental, entitlement, architectural, traffic, community relations, political, geotechnical, civil engineering, sustainability, and construction consultants. In all complex matters, whether in business, medicine, engineering, or virtually any other field, it is advisable to have an executive project manager to select and coordinate the activities of each required area of expertise. In many ways litigators must act in the capacity of executive project manager. Unfortunately, few attorneys have the capability to evaluate all the necessary diverse areas of expertise, and to understand which of these areas are relevant to the issues of a case. While specific detailed technical expertise is often clearly called for in crafting real property litigation, there are often factors that are not readily apparent upon which the outcome of the case can turn.

In complex cases, it can be tremendously valuable to have a generalist expert who is familiar with all the disparate aspects of the subject of the litigation serve as the executive manager of the expert witness team. Essentially treating the litigation as a project can help piece together elements of a case that are not immediately evident. Unfortunately, not all cases have sufficient damages to justify a comprehensive expert team, but when the litigation and client can support the cost there is no better way to help ensure an outcome that reflects all available avenues of analysis. The following case study will illustrate how valuable expanded involvement by an expert can be to a case.

Thinking Outside the Box

A lawsuit was filed in Los Angeles Superior Court in 2012 that involved a contract/fraud claim in a real estate syndication. The Plaintiffs alleged that there were misrepresentations by the Defendant, the investment syndicator, in packaging the investment in the offering prospectus. All of the attorneys and experts resided in Los Angeles, although the syndicated apartment properties at issue were located in Sacramento. The attorneys on both sides, as well as the expert retained by Plaintiff's counsel, focused solely on the documentary history of the transaction.

The Defendant hired an expert with brokerage, investment, and general real estate expertise. The Defendant's expert witness felt that it was important for him to go to Sacramento to view the properties and interview the property managers to become knowledgeable about the specifics of the particular properties and the Sacramento market. Having broad-based expertise in all aspects of real estate investment, the expert understood that first-hand observation and investigation of real estate transactions often disclosed factors that could not be uncovered any other way. To really understand a real property asset, he felt it was important to deeply understand the myriad factors that are involved in making wise real estate decisions. Whenever real estate market dynamics are involved, it is unlikely that anyone can get a complete picture without getting a first-hand experience of the asset.

The Defendant's attorneys were initially reluctant to incur the travel expense, and questioned the value of the trip. But the expert explained the importance of the broadest possible understanding of the issues involved, and ultimately prevailed. During the expert's tour of the area, including interviews with the property managers, the expert discovered something that ultimately won the case for the Defendant. The Plaintiff's case was based on the allegation that the Defendant should have known about the declining markets in which the syndicated apartment projects were located. The markets certainly did decline shortly after the Plaintiff subscribed to the syndication agreement, but as it turned out the cause could not possibly have been anticipated by the Defendant.

The expert discovered through his investigation that the neighborhoods in question had seen a remarkable upturn in valuation immediately prior to the syndication because the Sacramento police department had assigned a special gang task force to the area. Consequently, the crime rates dropped precipitously, the area began gentrifying, and rents began to increase. Shortly after the syndication closed, the 2008 recession set in, causing housing values everywhere to decline. To compound the broad market decline, and what ended up being dispositive in the case, the reduced tax revenues from the recession caused the Sacramento police to endure budget cuts. These budget cuts, in turn, led them to terminate the task force that regularly patrolled the area. As a consequence, crime rates once again increased and housing values dropped as quickly as they had risen. There was no way the Defendant could have predicted this sequence of events. Once this information was disclosed to the Plaintiff, the case was settled.

This case, and many others like it, illustrate the value of maintaining a creative attitude, being open to expanding the scope of representation, engaging in constant analysis and always looking for ways to improve the depth, thoroughness and accuracy of the expert's opinions. It is always appropriate for an expert to adopt a dispassionate professional posture, and it is certainly acceptable to simply answer the questions the expert's retaining counsel asks.
But there is much more value that a well-managed expert can provide. To ensure the best possible outcome, it is essential that the attorneys allow their experts to maintain a flexible awareness of all the facts, make a concerted effort to deeply understand the opponents' point of view, and offer experience-based assistance to evaluating the issues of the case. This not only adds to the value of the experts, but also helps enhance the effectiveness of the retaining attorneys.

Thoughtful and engaged expert witnesses regularly struggle with the desire to offer their hiring attorneys ideas or information that go beyond the scope of the matters on which they were asked to opine. With specialized dimensions of experience and unique perspectives, an expert witness will often bring levels of understanding of the complex and multi-dimensional issues of a case that go well beyond that of the retaining attorneys. Some lawyers welcome the broader view the experts can offer, and some actually craft their case around expert opinions. But many seek to limit the expert to answering narrowly defined questions that are asked. The role of an expert witness is to advocate for his or her expert opinion, not to advocate for a specific outcome of the litigation. Nonetheless, the value of experts to their retaining attorneys is enhanced when they can provide information that helps support or show the strengths or weaknesses in their case.

The Responsibilities of the Experts

The expert's raison d'être is to assist the trier of fact in understanding aspects of the evidence that may require specialized skill or knowledge; and hopefully help them grasp the various dimensions and finesses of technical elements or standards of practice that might not immediately be apparent. But litigation is generally based on conflicting interpretation of facts, and experts are frequently the best way for attorneys to investigate, identify, interpret, validate, or determine the relevance of various facts at issue. The numerous dimensions of interrelated technical or operational issues involve in complex litigation usually go far beyond the lay understanding of the triers of fact - and often the attorneys. "There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute." Modern litigation regularly departs from lay experience and knowledge, making the roll of the experts ever more vital. While mutually exclusive expert positions can satisfy the test for reliability , the more in-depth the background and research underpinning an expert's opinion, methodology, or competence, the more credible the opinion will be to the trier of fact.

All experts should understand the concern many lawyers have over accepting an expanded scope of expert review, analysis, or testimony. Some attorneys don't want to risk further complicating the issues, some fear that the expert may tread into areas that could compromise the case, some fear that doors may be opened to a line of inquiry that could jeopardize their position, and some just don't want to incur the extra fees. But diligent and experienced experts have an obligation to at least think outside the box and raise the possibility of lines of inquiry that they feel might be warranted, and then step back and let the attorney decide if it's something he/she wishes to pursue. In many cases, expert analysis can alert the attorney to potential issues that should be addressed or at least considered in structuring the case.

It is the responsibility of the experts, at the outset of every case, to get to know the character of the attorneys (on both sides, if possible), and to assess the extent to which the retaining attorneys desire to have the expert add their expertise to the management of the case. Not all attorneys are aware of this added value that their experts can provide, and not all attorneys are open to it. Attorneys need to realize that experts frequently have knowledge and experience beyond the intended scope of their intended testimony, and artificial limits placed on the information the expert is able to provide can potentially compromise the outcome of the case.

Selecting the Expert

Some cases have simple enough legal issues that the attorney can effectively manage the required expert(s). In those instances, the standards for selecting the experts should consider the following factors:

The expert's training and experience must reflect an appropriate level of expertise in the subject matter required.

The expert should display the ability to apply constant analysis and flexible awareness to the relationship between the technical matters and the legal context.

The expert must be capable of understanding the nuanced communication of those providing the facts for the expert to evaluate (whether conflicting opinions, investigative reports, or other experts on the litigation team).

The expert must be able to communicate clearly, effectively, and persuasively to outside parties (e.g. in deposition or trial testimony). This is often a difficult skill-set for the attorney to evaluate. Communication styles vary greatly, and there can be a fine line between persuasive communication, compromised credibility, and perceived bias.

The expert should have a personality and style that elicits trust on the part of the trier(s) of fact.

The expert should demonstrate a cognitive style that doesn't get flustered, and can respond quickly to changes in tactics on the part of retaining or opposing counsel.

In addition to selecting the best expert, the expert's fees must be consistent with the scope and damages of the case. This can be one of the most difficult issues for the retaining counsel to balance. In general, the most effective experts will also be the most costly experts - often more than the client or case can justify. Whether the benefits that a higher quality expert brings to the case is affordable, or worth the cost, is a business decision that the attorney and client need to make as early in the litigation as possible.

In general, when evaluating a potential expert's curriculum vitae, it is important for the attorney to evaluate the expertise sought based on the current status of the case. However, the attorney also needs to think beyond the obvious issues of the case to determine whether the expert will be able to respond and adapt to the myriad changes that often occur as the case progresses. While a broader base of expertise may not seem necessary in the early stages of litigation, the opposition will undoubtedly seek to take the case beyond the capabilities of the designated experts. If the opposition is successful in doing so, it places strategic, logistical and financial burdens on the retaining counsel. If last minute additional expertise is required, the retaining counsel will be challenged to bring the new expert(s) up to speed, and possibly even need to restructure the strategy of the case. While beginning a case with a broad-based expert team might initially cost more, it could save money and result in a better outcome in the long run.

Conclusion

Most experienced litigators understand the value of properly selected and managed expert witnesses. Unfortunately, many delay bringing the experts on board until later in the litigation, which may not be ideal for maximizing the value that the experts bring to the case. While expert witnesses technically are not involved in shaping the strategy of a case, early knowledge of the experts' opinions will give the retaining counsel a tremendous advantage in understanding the likely issues that he/she will confront as the case progresses.

The most successful litigators have established relationships with broad-based experts who are retained early in the case. If there are financial or strategic reasons for holding off retaining a testifying expert, the retaining counsel can retain the expert solely as a consultant (or "non-testifying expert"). In the capacity of a consultant, the attorney can glean tremendous value early on. The consultant opinions can be shielded from discovery under attorney work product, and the scope of the consultant expert's work can be limited to reviewing documents or helping to educate retaining counsel. The consultant expert can also help retaining counsel deal with complex technical issues or respond to opposing experts. If the case later calls for the expert to testify, the expert can switch roles and become a designated expert.

Philip Simmons is a real estate and land use attorney and licensed California real estate broker, as well as being an expert witness and real estate development consultant. Philip offers over 30 years of experience managing major real estate developments and development organizations - including serving as Vice President of Watt Industries and Archstone-Smith, and Division President for John Laing Homes. His unique combination of executive management, legal, and brokerage skills gives him broad expertise in land use, acquisition, entitlement, development, contracts, syndications, finance, marketing and disposition. His clear and thoughtful analysis and communication style has contributed to the successful outcome of numerous cases.